Garam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application by the applicant, a citizen of South Sudan, for the revocation of a mandatory visa cancellation. The applicant did not pass the character test due to a substantial criminal record, including convictions for aggravated assault causing harm and aggravated assault causing harm with intent to cause harm, which occurred in 2013 while the applicant was affected by alcohol and in contravention of an intervention order. The applicant also held a Protection Visa, meaning Australia had protection obligations towards him due to a real risk of significant harm if removed to South Sudan.

The Administrative Appeals Tribunal was required to determine whether there was "another reason" why the mandatory visa cancellation should be revoked, as the applicant did not pass the character test. This involved assessing various considerations outlined in Ministerial Direction No. 90, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the offending conduct, the risk of reoffending, the expectations of the Australian community, the applicant's non-refoulement obligations, and the strength, nature, and duration of the applicant's ties to Australia.

The Tribunal considered the applicant's criminal history, noting that while many offences were not particularly serious, the 2013 assaults were aggravated by the contravention of a court order and the use of a weapon. However, the Tribunal also had regard to the applicant's protection obligations under international law and the significant impediments to his removal to South Sudan. After weighing all the primary and other considerations, the Tribunal was satisfied that, on balance, there was another reason to revoke the visa cancellation.

Consequently, the Tribunal set aside the delegate's decision not to revoke the mandatory cancellation of the applicant's visa and, in substitution, decided to revoke the cancellation of the applicant's Class XB, Subclass 202 Global Special Humanitarian visa.